5.  The applicant was born in Vienna in 1936 to Jewish parents. Her father was arrested in 1939. In 1942 the family learned of his death. In the same year the applicant’s mother was arrested. In 1943 the applicant and her mother were deported to the concentration camp in Bergen-Belsen. They were transferred to the concentration camp in Vittel in 1944 and were liberated the same year. After having spent four further years in camps for displaced persons, the applicant and her mother emigrated to Israel in 1948. The applicant is still living in Israel, where she resides in Petah-Tikva.
6.  The applicant married in 1957. She has three children born in 1961, 1965 and 1971. She worked as a practising lawyer and notary public.
7.  On 1 March 2002 an amendment to the General Social Security Act (Allgemeines Sozialversicherungsgesetz) entered into force, creating additional possibilities of obtaining pension entitlements for persons who had been prevented from accumulating insurance periods by their arrest, punishment, detention, unemployment, denaturalisation or emigration as a result of National Socialist persecution.
8.  Subsequently, the applicant requested the Pension Insurance Office (Pensionsversicherungsanstalt) to apply these provisions to her case.
9.  On 29 October 2002 the Pension Insurance Office issued a declaratory decision stating that the applicant was entitled to pay insurance contributions in respect of periods of emigration between 20 January 1951 and 31 December 1965 – a total of 180 insurance months – pursuant to section 504(2) taken in conjunction with section 502(6) of the General Social Security Act. Moreover, certain periods of secondary and university education were accepted as substitute periods (Ersatzzeiten) provided that contributions were paid in respect of periods of emigration.
10.  In a letter of the same day the Pension Insurance Office informed the applicant that she would have to pay 24.19 euros (EUR) per month, making a total amount of EUR 4,354.20 for 180 insurance months. By making this payment by 31 May 2003 at the latest she would be entitled to a monthly pension of EUR 277.25 plus two additional payments in the same amount per year, with effect from 1 March 2002.
11.  The applicant appealed against the decision of 29 October 2002, arguing, inter alia, that periods of child-raising should be counted for the purpose of calculating her pension. Not doing so would discriminate against her in relation to women who had not been forced to emigrate and had thus raised their children in Austria.
12.  On 6 May 2003 the Office of the Vienna Regional Governor (Amt der Landesregierung) dismissed the applicant’s appeal. It found that the Pension Insurance Office had correctly applied sections 502(4) and (6) of the General Social Security Act by declaring that the applicant was entitled to a maximum of 180 insurance months between January 1951, when she had reached the age of fifteen, and December 1965. Periods of secondary and university education abroad in the years 1953 to 1959 were accepted as substitute periods pursuant to section 502(7) of the General Social Security Act taken in conjunction with sections 227(1)(1) and 228(1)(3). However, section 500 and the subsequent sections of the General Social Security Act did not provide for periods of child-raising within the meaning of section 227a to be counted as substitute periods.
13.  The applicant lodged a complaint with the Constitutional Court (Verfassungsgerichthof), alleging that section 502 of the General Social Security Act breached the principle of equality as guaranteed by Article 7 § 1 of the Federal Constitution. She argued in particular that excluding periods of child-raising on the ground that they were spent abroad ran counter to the underlying intention of the rules concerning preferential treatment of persons who had suffered disadvantages in their social security status during the National Socialist era. These rules were aimed at eliminating the financial disadvantages suffered by victims of National Socialism under social security law.
14.  On 23 September 2003 the Constitutional Court refused to deal with the applicant’s complaint for lack of prospects of success. It observed that in an area such as the present one, concerning special provisions giving preferential treatment to a particular group of persons under social security law, the legislature had a wide margin of appreciation in assessing whether events which occurred abroad were to be treated on an equal footing with events that occurred in Austria.
15.  Following a request by the applicant the Constitutional Court referred the case to the Administrative Court (Verwaltungsgerichtshof). Before that court the applicant repeated in essence the arguments she had raised before the Constitutional Court. She asserted in particular that, having regard to the aim pursued by section 502 of the General Social Security Act and the fact that periods of secondary and university education abroad were accepted as substitute periods, the lack of a provision including periods of child-raising abroad as substitute periods could only be regarded as an omission. The authorities should have closed this unintended gap in the law by accepting periods of child-raising abroad as substitute periods.
16.  On 22 December 2004 the Administrative Court dismissed the applicant’s complaint as being unfounded. It noted that section 500 of the General Social Security Act and its subsequent sections were aimed at eliminating disadvantages in accumulating insurance periods which victims of National Socialism had suffered on account of their persecution or emigration. The law did not require there to be an actual causal link between persecution and the loss of insurance periods. It proceeded from the assumption that without the persecution, insurance periods would have been accumulated, and provided for overall crediting (pauschalierte Anrechnung) of contribution periods or substitute periods to compensate for periods of persecution or emigration.
The Administrative Court went on to hold:
“In such a system, a teleological gap cannot in principle result from the fact that the legislature has not extended the crediting of periods of child-raising in Austria under section 227a of the General Social Security Act to persons who, for reasons linked to persecution within the meaning of section 500, live abroad during periods of child-raising. Section 227a has a similar (substitute) function in that it likewise provides for the crediting for insurance purposes of periods during which the person concerned was prevented from accumulating insurance periods (in this instance, on account of child-raising). In so far as the legislature already compensates for the loss of insurance periods as a result of persecution, no further compensation is needed. In so far as it does not make such provision, there is no difference in relation to other persons who are resident abroad: on account of the territoriality principle applicable under the social security scheme, the crediting of insurance periods in accordance with section 227a of the General Social Security Act would in any event require an equalisation arrangement through an international agreement and, moreover, decisions in such matters would be taken not in administrative proceedings but in proceedings concerning benefit entitlements.
Section 502(7) of the General Social Security Act does not alter this finding in any way. This provision has two aims: it ensures that periods of schooling that were interrupted as a result of persecution are regarded as completed (thus constituting a situation giving rise to preferential treatment under section 502(4)), and it places school and university attendance abroad and in Austria on an equal footing. This equal treatment is admittedly of significance for benefit entitlement (and not only for the application of preferential treatment on the basis of emigration). However, as such it falls within the discretion enjoyed by the legislature in matters of legal policy. No further inferences are to be drawn from this in terms of the principle of equality, especially not in the manner argued by the complainant.”
Finally, the Administrative Court noted that the applicant’s complaint failed to give more detailed reasons as to why accepting periods of child-raising abroad as substitute periods was objectively required.
17.  The judgment was served on the applicant’s counsel on 20 January 2005.